Derrick Dehaney v. City of Winchester Dept Soc Svcs

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Frank and Clements

DERRICK HUGH DEHANEY
MEMORANDUM OPINION *
v. Record No. 2910-01-4 PER CURIAM
MARCH 19, 2002
CITY OF WINCHESTER
DEPARTMENT OF SOCIAL SERVICES

FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER
John E. Wetsel, Jr., Judge

(James A. Drown; Larrick, Larrick and Drown,
P.C., on briefs), for appellant.

(Thomas R. Robinett, City Attorney, on
brief), for appellee.

Derrick Hugh Dehaney, appellant, appeals a decision of the

trial court terminating his residual parental rights to his son,

Derrick Dwayne Dehaney. Upon review of the record and briefs of

the parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the decision of the trial court.

Rule 5A:27.

BACKGROUND

On appeal, we review the evidence in
the light most favorable to the prevailing
party below . . . . Where the record
contains credible evidence in support of the
findings made by that court, we may not
retry the facts or substitute our view of
the facts for those of the trial court.

* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Ferguson v. Stafford County Dep't of Soc. Servs., 14 Va. App.

333, 336, 417 S.E.2d 1, 2 (1992).

Derrick Dwayne Dehaney, the child, was born on February 4,

1991 in Winchester, Virginia. Both appellant and the child's

mother are Jamaican citizens. On April 30, 1998, appellant was

convicted for a drug offense and was sentenced to 188 months

incarceration with a special condition of deportation to Jamaica

upon his release. Appellant is incarcerated in Petersburg,

Virginia, where he has been imprisoned since at least November

9, 1998. In 1996, the child's mother was deported to Jamaica,

where she still resides. Prior to his incarceration, appellant

raised the child.

The child first came to foster care on November 9, 1998,

and from that date until April 10, 2000, the Winchester

Department of Social Services (DSS) attempted to place the child

with a member of his immediate family. The mother and maternal

grandmother initially expressed interest in having the child

placed with them, but their interest faltered. Appellant

objected to the child being reunited with his mother.

After exhausting all family alternatives, on April 10,

2000, DSS filed a Foster Care Plan changing the goal of

"placement with relative" to adoption. The plan also indicated

that termination of each parent's residual parental rights was

in the best interests of the child.

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 During the time period the child has been in the care and

custody of DSS, DSS has provided appellant with opportunities to

maintain telephone and mail contact with the child. The child's

foster care worker indicated he wrote several registered letters

to appellant attempting to arrange a face-to-face visit between

appellant and the child. However, he never received any

response from appellant. In addition, the trial court found

that appellant abused telephone and mail contact with the child

"so as to generate behavioral disturbances in the foster home."

The foster mother terminated the child's telephone contact with

appellant and screened appellant's mail through a social worker

to avoid difficulties with the child. DSS also provided

opportunities for appellant to participate in the design of

Foster Care Plans and the educational needs of the child, but

appellant has never responded to any overtures from DSS.

The trial court found that it is not in the best interests

of the child to maintain ongoing contact with appellant "due to

the unacceptable behavioral outbursts generated by such

contact." The trial court further found that,

given [appellant]'s refusal or inability to
participate in the design of Foster Care
Plans or to suggest a workable plan for his
son's care and custody, while retaining the
ability to object to any other workable
proposal, . . . [appellant] has failed to
plan for the child's future for a period of
more than six (6) months, and . . . he has
been unwilling or unable to substantially
correct or eliminate the conditions which
caused the child's placement and

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 continuation in Foster Care for a period of
more than twelve (12) months.

In addition, the court found that the neglect suffered by

the child, given that neither parent is capable of providing him

with a home, presents a "serious and substantial threat to his

life, health and development." Furthermore, the trial court

stated, it is "not reasonably likely" that the conditions that

resulted in the neglect can be "substantially corrected or

eliminated so as to allow the child's safe return to [appellant]

within a reasonable period of time." Accordingly, the trial

court terminated appellant's residual parental rights.

ANALYSIS

Under Code § 16.1-283(B), the residual rights of a parent

of a child placed in foster care because of parental neglect or

abuse may be terminated only if the court finds by clear and

convincing evidence that (1) termination is in the best

interests of the child; (2) the neglect or abuse suffered by the

child presented a serious and substantial threat to the child's

life, health, or development; and (3) it is not reasonably

likely that the conditions which resulted in the neglect or

abuse can be substantially corrected or eliminated to allow the

child's safe return to his parent within a reasonable period of

time.

Code § 16.1-283(C)(2) provides that a court may terminate a

parent's residual parental rights where a child has been placed

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in foster care if the court finds, based upon clear and

convincing evidence, that (1) it is in the best interests of the

child; (2) that the parents without good cause have been

unwilling or unable within a reasonable period of time not to

exceed twelve months to remedy substantially the conditions

which led to the child's foster care placement; and (3) that

reasonable and appropriate efforts of social, medical, mental

health or other rehabilitative agencies have been made to such

end.

Appellant argues that, other than his incarceration, DSS

failed to present any credible evidence that past or future

contact with the child was or will be detrimental to the child's

best interests.

[W]hile long-term incarceration does not,
per se, authorize termination of parental
rights or negate . . . D[SS]'s obligation to
provide services, it is a valid and proper
circumstance which, when combined with other
evidence concerning the parent/child
relationship, can support a court's finding
by clear and convincing evidence that the
best interests of the child will be served
by termination.

Id. at 340, 417 S.E.2d at 5.

The child has been in foster care for more than three

years. "It is clearly not in the best interests of a child to

spend a lengthy period of time waiting to find out when, or even

if, a parent will be capable of resuming his responsibilities."

Kaywood v. Halifax County Dep't of Soc. Servs., 10 Va. App. 535,

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540, 394 S.E.2d 492, 495 (1990). Moreover, the child will be

almost twenty years old when appellant is released from prison

and deported to Jamaica. In addition, the child's foster mother

testified that although appellant contacted the child

infrequently, when the child received mail from appellant or had

telephone contact with appellant, he "[got] very agitated" and

would have "outbursts." She stated that after having contact

with appellant, the child had kicked a hole in a wall, jumped

from a second story window, and had problems in school, such as

fighting, threatening teachers, and running away. Appellant

also discouraged the child from having contact with his mother.

The foster mother indicated that since appellant's contact with

the child has been limited, the child's behavior has been "a

whole lot better" and he has had only a few outbursts.

Furthermore, the foster mother has heard the child talk about

his father only in terms of the fights appellant had

participated in and the card games he played. The child is now

an "A" student in school, but he is in a "special class" because

of his behavioral issues.

The evidence in this case supports the trial court's

findings. It is apparent that appellant is unable to care for a

young child and is unable to remedy within a reasonable time the

conditions which led to his child's placement in foster care.

Thus, we cannot say that the trial court's finding by clear and

convincing evidence that the conditions of Code § 16.1-283 have

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been established was plainly wrong or without evidence to

support it. Accordingly, we affirm the trial court's decision.

Affirmed.

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